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Not bad, PJ

I sometimes wonder if codifying fair use into the Copyright Act was a good idea.

On the one hand, it's more clear, concise, and easier to find than a pile of case law.

On the other hand, people forget where it came from and start to think of it as just another law.

Most of fair use is implied by Constitutional rights. The Constitution contradicts itself in a way by preventing the government from impeding free speech but providing for a limited monopoly over certain manifestations of that speech via copyright.

Call it a privilege, call it an affirmative defense, call it anything you want. The truth is that the specific terms of copyright are not in the Constitution. Those are mere law. A reasonable harmony of copyright and speech must inhibit copyright, not speech. Hence, fair comment provisions allow you to use copyrighted material but only enough for the purpose of criticism or comment. Free speech is preserved along with an author's rights.

> The Constitution contradicts itself
> in a way by preventing the government from
> impeding free speech but providing for
> a limited monopoly over certain
> manifestations of that speech via copyright.

But... free speech is established in an amendment to
the Constitution, whereas copyright (though not
under that name) is established in its body.

Doesn't an amendment amend the pre-amendment
document? (My mental image is that of a patch :)

No. Amendments are exactly that: changes to the Constitution. If anything, they would override prior conflicting provisions on the theory that the amendment drafters were fully aware of the earlier provisions.

Besides, copyright is really only partly constitutional. The Constitution grants Congress the right to enact copyrights, but doesn't spell out the terms. Courts tend to give a lot of lattitude, but Congress cannot contradict explicit constitutional grants.

mv, actually, the 1st Amendment (as well as the 2nd, 4th, 5th, 9th and 10th) clarify restrictions on the power of government to infringe upon _pre_existing rights.

Look at it logically: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Those rights are already there, government may not move to restrict them. The 2nd Amendment is even more explicit.

Several of the Federalist arguments against having a Bill of Rights was that it would lead to confusion, to the impression that those rights are granted rather than merely enumerated. And, sure enough, that may be the only thing the Federalists were absolutely right about.

As Dino points out, having the principle codified does indeed cause people to lose track of where those principles come from.

> No. Amendments are exactly that: changes to the Constitution. If anything, they
> would override prior conflicting provisions on the theory that the amendment
> drafters were fully aware of the earlier provisions.